Manoj vs State Of Madhya Pradesh

(1) This Criminal Appeal under Section 374 of Cr.P.C. has been filed against the judgment and sentence dated 8-10-2015 passed by Sessions Judge, Ashok Nagar, in S.T.No.15/2014, by which the appellant has been convicted under Section 307 of I.P.C. and has been sentenced to undergo the Rigorous Imprisonment of 10 years and a fine of Rs.10,000/- with default imprisonment.

(2) The necessary facts for the disposal of the present appeal in short are that the injured Smt.Neera was married to the appellant, however, he was not treating her properly and Court cases were also pending between them. The injured was working on the post of Anganwadi Worker and was posted in Ashok Nagar and was residing with her mother. On 8-11-2013 at about 2:45 P.M., the injured and her mother Smt. Kaushalya were coming back by walking. When they reached near Anusuchit Jati Girls Hostel, the appellant came there and started assaulting the injured by knife. Multiple incised wounds were caused by him which also resulted in amputation of little finger of her left hand. On hearing the shouts of the injured, Virendra Singh, Vikas Sharma and Yogesh came on the spot and after noticing them, the appellant ran away. The injured was brought to District Hospital by the complainant. Dehati Nalishi was recorded by the police on the information given by the complainant Smt. Kaushalya. The injured was got medically examined. The F.I.R. was lodged. The spot map was prepared and plain earth as well as blood stained earth was seized. The injured was admitted in Private Hospital known as Kayal Surgical Home, Ashoknagar. The blood stained cloths of the injured were seized. The appellant was arrested on 8-11-2013 itself at 6:10 P.M. His statement under Section 27 of Evidence Act was recorded and blood stained knife was seized from his possession. The seized articles were sent to F.S.L., Gwalior. Blood was found on the knife seized from the possession of the appellant. After completing the formalities, the police filed the charge sheet for offence under Sections 307, 326 of I.P.C.

(3) The Trial Court by order dated 7-5-2014, framed charge under Section 307 of I.P.C.

(4) The appellant abjured his guilt and pleaded not guilty.

(5) The prosecution, in order to prove its case, examined Kaushalya (P.W.1), Dr. S.S. Chhari (P.W.2), Neera (P.W.3), Yogesh Sharma (P.W.4), Vishnu Prasad Sharma (P.W.5), Dr. Pradeep Kayal (P.W.6), Dr. Santosh Raghuvanshi (P.W.7), Pradeep Dixit (P.W.8), Rajesh (P.W.9), Hariom (P.W.10), S.R. Bhagat (P.W.11), Vikas Sharma (P.W.12), and Virendra Singh (P.W.13). The appellant himself examined as a witness (D.W.1).

(6) The Trial Court by judgment and sentence dated 8-10-2015 passed by Sessions Judge, Ashok Nagar, in S.T. No. 15/2014, has convicted the appellant under Section 307 of I.P.C. and has sentenced him to undergo the Rigorous Imprisonment of 10 years and a fine of Rs. 10,000/- with default imprisonment.

(7) Challenging the judgment and sentence passed by the Court below, it is submitted by the Counsel for the appellant, that evidence of Neera and other witnesses is not reliable and the jail sentence of rigorous imprisonment of 10 years awarded by the Trial Court is excessive.

(8) Per contra, it is submitted by the Counsel for the State that the F.I.R. was lodged promptly and multiple injuries were caused by the appellant on the vital parts of the body of the injured and has also resulted in amputation of little finger of her left hand. It is further submitted that the jail sentence of rigorous imprisonment of 10 years, as awarded by the Trial Court is proper and does not call for any interference.

(9) Considered the submissions made by the Counsel for the parties.

(10) On 8-11-2013, at about 3 P.M., Dr. Santosh Raghuvanshi (P.W.7) had medically examined the injured Neera (P.W.3) and had found the following injuries on her body :-

Stab Wound 6 x 4 x viscera protruding out, on Left lumber region

Sharp cut 2x1x0.5 cm lt. Sub-coastal region

Sharp cut 5x2x0.5 cm lt. Arm

sharp cut 3x1x0.3cm left side of neck

Amputation of lt. Little finger with bleeding.

The M.L.C. Report is Ex. P.10.

This witness was cross examined and it was suggested to this witness, that if a person falls on a broken piece of bottle, then she may suffer the injuries which was admitted by this witness. However, the Counsel for the appellant, could not point out any circumstance, which may indicate that the injured Neera had fallen down on a broken piece of bottle.

(11) Dr. S.S. Chhari (P.W.2) was working on the post of Radiologist in District Hospital, Ashok Nagar. He had taken the X-ray of palm of left hand of the injured Neera and found distal and middle ½ part of proximal phalanx of lt. Little finger was amputated. The x-ray report is Ex. P.3, whereas the X-ray plate is Ex. P4.

(12) Dr. Pradeep Kayal (P.W.6) had treated the injured and has stated that he had operated the injured for repairing the viscera and the injury was dangerous to life. The documents of treatment are Ex.P.6 to Ex. P.9

(13) Accordingly, it is held that the prosecution has succeeded in establishing beyond reasonable doubt that the injured Neera (P.W.3) had suffered multiple stab wounds.

(14) The next moot question for consideration is that whether the appellant had caused the injuries to the injured Neera (P.W.3) or not?

Kaushalya (P.W.1) has stated that the appellant is her son-in-law as Neera was married to him about 3 years back. However, the behavior of the appellant was cruel, therefore, Neera was residing with her for the last near about 1 ½ years. The injured Neera was working in Anganwadi Centre. Court cases are going on between the appellant and Neera. On the date of incident, she along with the injured Neera were coming back. The appellant was standing by the side of the Hostel and was having a knife. The appellant caused multiple injuries to the injured. The witnesses came there and the appellant was caught. Thereafter, She took the injured to the Govt. Hospital. The injured Neera had fallen unconscious. The doctors in Govt. Hospital refused to treat the injured and therefore, She took her to private Hospital. The Dehati Nalishi, Ex.P.1 was lodged by the police when She was in the Govt. Hospital. The police had also seized the cloths of the injured vide seizure memo Ex.P.2. This witness was cross examined and in cross examination, She denied the suggestion that it was Neera who was not inclined to stay with the appellant, but it was specifically clarified by this witness that as the appellant was treating the injured with cruelty, therefore, She was residing with her. She further admitted that divorce was granted to her elder daughter but denied the suggestion that the injured Neera was also interested to take divorce from the appellant.

Neera (P.W.3) is the injured and She has also stated that while she was coming back along with her mother, she was attacked by the appellant and multiple incised/stab wounds were caused by the appellant. The Court had also noticed that the little finger of left hand of this witness was missing and scars were also noticed by the Court on different parts of the body of the injured. This witness was cross examined and certain omissions with regard to the previous conduct of the appellant in her statement under Section 161 of Cr.P.C. were suggested and it was replied by the witness that since, no questions were put by the police with regard to past conduct of the appellant, therefore, they were not disclosed to the police. The explanation given by the witness appears to be bona fide. No other suggestion with regard to the incident of actual assault was given to this witness except by giving a general suggestion that the appellant had not assaulted her, which was denied by the witness. The Counsel for the appellant could not point out any circumstance from her cross examination, which may make her evidence unreliable.

Yogesh Sharma (P.W.4) is the brother of the injured who reached on the spot after the actual assault was already made. He has stated that after hearing the hue and cry, when he reached on the spot, he noticed that his Sister Neera was lying in an injured condition and had noticed that the appellant was running away from the spot. He was told by his mother that the appellant has caused the injures.

Vishnu Prasad Sharma (P.W.5) is the father of the injured, who was informed by some person and, therefore, he reached on the spot where he was informed by his wife, that the appellant has assaulted the injured. Thus, this witness is a hearsay witness.

Pradeep Dixit (P.W.8) had recorded the F.I.R. Ex. P.11 on the basis of the Dehati Nalishi, Ex.P.1.

Rajesh (P.W.9) is also a hearsay witness.

Hariom (P.W.10) is an eye witness, who had witnessed the incident and had seen that the appellant after catching hold the scalp hairs of the injured had caused multiple stab wounds by knife. However, this witness denied that the blood stained earth and plain earth were seized, however, accepted his signatures on seizure memo Ex.P.12. He further stated that the memorandum of the appellant was recorded in which he had stated that he has thrown the knife on the garbage. The memo is Ex. P.13 and the knife was seized vide seizure memo Ex.P.14. The appellant was arrested vide arrest memo Ex.P.14. In cross examination by the public prosecutor, this witness admitted that the spot map, Ex. P.5 was prepared and blood stained earth and plain earth was seized vide seizure memo Ex. P.12. The evidence of this witness was deferred due to the fact that the working hours were over, however, in the order sheet it was mentioned that this witness was examined and cross examined, however, from the record, it is clear that the cross examination of this witness was deferred as the court working hours were over. As the appellant was not given any opportunity of cross examining this witness, therefore, the evidence of this witness can not be read against the appellant.

Vikas Sharma (P.W. 12) is also an eye witness who had seen the appellant causing injuries to the injured Neera. The appellant was arrested vide arrest memo Ex. P.15 and the memorandum of the appellant is Ex. P.13 and the knife was seized vide seizure memo Ex P.14. This witness was also cross examined by the defence, however, nothing could be elicited which may make his evidence unreliable.

Virendra Singh (P.W.13) is also an eye witness. He had seen the appellant, causing injuries to the injured Neera. This witness was also cross examined by the defence, however, nothing could be elicited which may make his evidence unreliable.

S.R. Bhagat (P.W.11) is the investigating officer who had recorded the Dehati Nalishi, Ex.P.1. This witness had prepared the spot map, Ex. P.5 and had seized the plain earth and blood stained earth vide seizure memo Ex. P.12. The blood stained cloths of the injured were seized vide seizure memo Ex. P.2 and the appellant was arrested vide arrest memo Ex.P.15. The memorandum of the appellant Ex. P.13 was recorded and the knife was seized on the disclosure statement vide seizure memo Ex.P.14. The statements of the witnesses were recorded and the seized articles were sent to F.S.L. Gwalior vide memo Ex. P.19. This witness was cross examined by the defence. This witness has admitted that the knife was seized from an open place which was having frequent movement of general public. He further denied that all the formalities were completed by him in the police station.

The incident is alleged to have taken place at about 2:45 P.M., and the Dehati Nalishi, Ex.P.1 was recorded in the Govt. Hospital at 3:20 P.M. i.e., within one hour. Considering the evidence of Kaushalya (P.W.1), Neera (P.W.3), Vikas Sharma (P.W.12) and Virendra Singh (P.W.13), as well as considering the fact that the evidence of injured Neera (P.W.3) finds full corroboration from her medical report coupled with the fact that the F.I.R. was lodged without any delay, it is held that the prosecution has succeeded in establishing the fact that the appellant had caused multiple injuries to the injured Neera (P.W.3) by knife.

So far as the nature of the offence committed by the appellant is concerned, this Court is of the considered opinion, that by causing multiple stab/incised injuries on the vital part of the body of the injured Neera (P.W.3), the intention of the appellant was to cause death of the injured Neera (P.W.3). Accordingly, the appellant is held guilty of committing offence under Section 307 of I.P.C.

(15) It is next contended by the Counsel for the appellant that the sentence of rigorous imprisonment of 10 years, is excessive and may be reduced.

(16) Considered the submissions made by the Counsel for the appellant. In the present case, the allegations are that as the appellant was treating the injured Neera (P.W.3) with cruelty, therefore, She had started residing with her mother along with her minor child. The appellant came to the village of the injured with knife and gave multiple knife blows on the vital parts of the body of the injured, including the neck and stomach and the injured Neera (P.W.3) has also suffered amputation of Little finger of her left hand.

(17) The Supreme Court in the case of Shyam Narain Vs. State (NCT of Delhi) reported in (2013) 7 SCC 77 has held as under :

''14. Primarily it is to be borne in mind that sentencing for any offence has a social goal. Sentence is to be imposed regard being had to the nature of the offence and the manner in which the offence has been committed. The fundamental purpose of imposition of sentence is based on the principle that the accused must realize that the crime committed by him has not only created a dent in his life but also a concavity in the social fabric. The purpose of just punishment is designed so that the individuals in the society which ultimately constitute the collective do not suffer time and again for such crimes. It serves as a deterrent. True it is, on certain occasions, opportunities may be granted to the convict for reforming himself but it is equally true that the principle of proportionality between an offence committed and the penalty imposed are to be kept in view. While carrying out this complex exercise, it is obligatory on the part of the court to see the impact of the offence on the society as a whole and its ramifications on the immediate collective as well as its repercussions on the victim.

In this context, we may refer with profit to the pronouncement in Jameel v. State of U.P., wherein this Court, speaking about the concept of sentence, has laid down that it is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence.

In Shailesh Jasvantbhai v. State of Gujarat the Court has observed thus: (SCC p. 362, para 7)

"7. ... Friedman in his Law in Changing Society stated that: 'State of criminal law continues to be-as it should be-a decisive reflection of social consciousness of society.' Therefore, in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration."

In State of M.P. v. Babulal, two learned Judges, while delineating about the adequacy of sentence, have expressed thus: (SCC pp. 241-42, paras 23-24)

"23. Punishment is the sanction imposed on the offender for the infringement of law committed by him. Once a person is tried for commission of an offence and found guilty by a competent court, it is the duty of the court to impose on him such sentence as is prescribed by law. The award of sentence is consequential on and incidental to conviction. The law does not envisage a person being convicted for an offence without a sentence being imposed therefor.

The object of punishment has been succinctly stated in Halsbury's Laws of England (4th Edn., Vol. 11, Para 482), thus:

'482. Object of punishment.-The aims of punishment are now considered to be retribution, justice, deterrence, reformation and protection and modern sentencing policy reflects a combination of several or all of these aims. The retributive element is intended to show public revulsion to the offence and to punish the offender for his wrong conduct. The concept of justice as an aim of punishment means both that the punishment should fit the offence and also that like offences should receive similar punishments. An increasingly important aspect of punishment is deterrence and sentences are aimed at deterring not only the actual offender from further offences but also potential offenders from breaking the law. The importance of reformation of the offender is shown by the growing emphasis laid upon it by much modern legislation, but judicial opinion towards this particular aim is varied and rehabilitation will not usually be accorded precedence over deterrence. The main aim of punishment in judicial thought, however, is still the protection of society and the other objects frequently receive only secondary consideration when sentences are being decided.'"

(emphasis in original)

In Gopal Singh v. State of Uttarakhand, while dealing with the philosophy of just punishment which is the collective cry of the society, a two-Judge Bench has stated that just punishment would be dependent on the facts of the case and rationalised judicial discretion. Neither the personal perception of a Judge nor self-adhered moralistic vision nor hypothetical apprehensions should be allowed to have any play. For every offence, a drastic measure cannot be thought of. Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a court. The real requisite is to weigh the circumstances in which the crime has been committed and other concomitant factors.

The aforesaid authorities deal with sentencing in general. As is seen, various concepts, namely, gravity of the offence, manner of its execution, impact on the society, repercussions on the victim and proportionality of punishment have been emphasised upon. In the case at hand, we are concerned with the justification of life imprisonment in a case of rape committed on an eight year old girl, helpless and vulnerable and, in a way, hapless. The victim was both physically and psychologically vulnerable. It is worthy to note that any kind of sexual assault has always been viewed with seriousness and sensitivity by this Court.''

The Supreme Court in the case of Raj Bala Vs. State of Haryana reported in (2016) 1 SCC 463 has held as under :-

''4. We have commenced the judgment with the aforesaid pronouncements, and our anguished observations, for the present case, in essentiality, depicts an exercise of judicial discretion to be completely moving away from the objective parameters of law which clearly postulate that the prime objective of criminal law is the imposition of adequate, just and proportionate punishment which is commensurate with the gravity, nature of the crime and manner in which the offence is committed keeping in mind the social interest and the conscience of the society, as has been laid down in State of M.P. v. Bablu, State of M.P. v. Surendra Singh and State of Punjab v. Bawa Singh.

* * * * * * * *

A court, while imposing sentence, has a duty to respond to the collective cry of the society. The legislature in its wisdom has conferred discretion on the court but the duty of the court in such a situation becomes more difficult and complex. It has to exercise the discretion on reasonable and rational parameters. The discretion cannot be allowed to yield to fancy or notion. A Judge has to keep in mind the paramount concept of rule of law and the conscience of the collective and balance it with the principle of proportionality but when the discretion is exercised in a capricious manner, it tantamounts to relinquishment of duty and reckless abandonment of responsibility. One cannot remain a total alien to the demand of the socio -cultural milieu regard being had to the command of law and also brush aside the agony of the victim or the survivors of the victim. Society waits with patience to see that justice is done. There is a hope on the part of the society and when the criminal culpability is established and the discretion is irrationally exercised by the court, the said hope is shattered and the patience is wrecked. It is the duty of the court not to exercise the discretion in such a manner as a consequence of which the expectation inherent in patience, which is the "finest part of fortitude" is destroyed. A Judge should never feel that the individuals who constitute the society as a whole is imperceptible to the exercise of discretion. He should always bear in mind that erroneous and fallacious exercise of discretion is perceived by a visible collective.''

(18) Considering the totality of the facts and circumstances of the case, this Court is of the considered opinion that the rigorous imprisonment of 10 years, awarded by the Trial Court, does not call for any interference.

(19) Accordingly, the judgment and sentence dated 8-10-2015 passed by Sessions Judge, Ashok Nagar, in S.T. No.15/2014, is hereby affirmed.

(20) The appellant is in jail. No further direction is required. He shall undergo the jail sentence as awarded by the Trial Court.

(21) The appeal fails and is hereby Dismissed.